Carriss v. Buxton

Carriss v. Buxton
Collection
Supreme Court Judgments
Date
1958-06-03
Report
[1958] SCR 441
Judges
Rand, Ivan Cleveland; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles
On appeal from
British Columbia
Subjects
Municipal law
Torts
Decision Content
Supreme Court of Canada
Carriss v. Buxton, [1958] S.C.R. 441
Date: 1958-06-03
R. N. Carriss (Defendant) Appellant;
and
Evelyn Buxton (Plaintiff) Respondent.
1958: January 30, 31; 1958: June 3.
Present : Rand, Locke, Cartwright, Fauteux and Abbott JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Negligence—Dangerous premises—Liability as between invitor and invitee—Charge to jury.
Hotels and hotelkeepers—Duty of keeper to guest—Nature of duty to make premises safe—Whether duty relevant on pleadings and charge to jury.
Municipal corporations—By-laws—Effect of by-law prescribing duties in respect of gas-burning appliances—Whether breach of by-law gives rise to civil liability.
The plaintiff s husband, while a lodger in the defendant s hotel, died of asphyxia caused by inhaling gas that escaped from a defective stove in the room occupied by him. The plaintiff sued for damages on her own behalf and on behalf of her infant children, and the trial judge charged the jury that the defendant owed two duties to his lodger: (1) his duty as invitor to invitee to use reasonable care to prevent damage from unusual danger of which the defendant knew or ought to have known, and (2) a duty under a municipal by-law requiring owners of buildings to "maintain all gas appliances installed therein and any safety devices attached to such appliances in safe working condition". The jury found that the defendant had been negligent in "not conforming with by-laws", and that the deceased had not been guilty of contributory negligence. Judgment was entered for the plaintiff and this judgment was affirmed by a majority of the Court of Appeal.
Held (Locke J. dissenting): The appeal should be dismissed.
Per Rand J.: Since the technical rules of pleading had been abolished, the claim here must be taken as the ordinary case of a person entering into the relation of a guest of an innkeeper at the usual charge and for the usual services. At the trial, however, all consideration of a "contractual relation" between the parties had been excluded, and no resort was permitted to the "warranty" of the fitness of the premises for the purposes for which they were taken, and it was assumed that the only duty available to the plaintiff was that of invitor to invitee, under Indermaur v. Dames (1866-7), L.R. 1 C.P. 274; L.R. 2 C.P. 311. Maclenan v. Segar, [1917] 2 K.B. 325, was distinguished as being an action in contract against an innkeeper. If the rule in the latter case had been applied, liability would have been indisputable, since the duty laid down by it was one of reasonable care in relation to the premises furnished to guests, exercised by every person concerned at any time in their construction, maintenance or operation. It was admitted here that the condition of the stove was most dangerous, and that condition could have been discovered by adequate inspection. The municipal by-law did not go beyond the requirement that reasonable care—in this case of the highest degree—be exercised by the proprietor and all persons under his direction. It was clear from the charge that the jury were not given to understand that there was an absolute duty under the by-law to maintain in all events a proper adjustment in the gas stove; the by-law was to be only evidence of negligence. In the light of this instruction, the jury s finding amounted to one of negligence, and the evidence to support that finding was overwhelming. The evidence not only justified but required a finding that the defendant should have known of a danger that was patent to any reasonable inspection and that, through his negligence, he was responsible for its consequences. It was not necessary, for the purposes of this case, to decide whether the duty of an innkeeper went beyond that.
Per Cartwright, Fauteux and Abbott JJ.: On the pleadings as they stood, the trial judge should have put the case to the jury as one governed by the principles stated in Francis v. Cockrell (1870), L.R. 5 Q.B. 184, 501. The rule in that case was stated in Winfield on Tort, 6th ed., at,p. 672; as follows: "Where A enters B s structure under a contract entitling him to do so, it is an implied term in the contract that the structure shall be reasonably fit for the purpose for which it is intended; but this does not extend to any unknown defect incapable of being discovered by reasonable means." This statement of the rule could be accepted for the purposes of this appeal as not unduly favourable to the plaintiff and it was not necessary to decide whether the judgment in Maclenan v. Segar, supra, should be accepted in its entirety. If the jury had been so charged they must inevitably have found for the plaintiff, in view of the evidence as to the nature of the defect in the gas stove and the length of time that it had existed. Therefore, even assuming that the trial judge did not charge the jury correctly as to the effect of the by-law, the appeal should nevertheless be dismissed on the ground that there had been no substantial wrong or miscarriage of justice.
Per Locke J., dissenting: The trial judge s charge as to the duty owed by the defendant under the by-law amounted to misdirection which was not corrected by a subsequent statement by him that the jury were entitled to take a breach of the by-law into consideration "as a factor of negligence". What he stated as the duty under the by-law, if it existed, was an absolute one, and was much higher than that of invitor to invitee, under Indermaur v. Dames, supra, or that of innkeeper to guest, under Francis v. Cockrell, supra, and Maclenan v. Segar, supra. But a breach of the by-law could not give rise to liability in a civil action since (1) it was passed for the protection of the public generally, and prescribed penalties for infractions, and (2) the enabling sections of the city charter, under which it was passed, did not empower the city council to create duties a breach of one of which would be a private wrong conferring a right of action for damages resulting from the breach. Tompkins v. The Brockville Rink Company (1899), 31 O.R. 124; Orpen v. Roberts et al., [1925] S.C.R. 364 at 370-1, applied. The jury should have been told that the by-law was admissible in evidence only to show that in the opinion of the city council certain standards of care were considered necessary to prevent injury from escaping gas. Their findings, in the circumstances, amounted to no more than a finding that the gas stove had not been maintained in the state required by the by-law, and this was not sufficient to support a verdict in favour of the plaintiff. No question could arise on this appeal as to the sufficiency of the plaintiff s pleadings to support a cause of action on the implied warranty of innkeeper to guest since that issue, with the consent of plaintiff s counsel at the trial, was not. submitted to the jury and the plaintiff must be bound by the way in. which her case had been conducted at the trial. Scott v. The Fernie Lumber Company, Limited (1904), 11 B.C.R. 91 at 96; David Spencer Limited v. Field, [1939] S.C.R. 36 at 42, applied. This was not a case of applying the rule laid down in Andreas v. The Canadian Pacific Railway Company (1905), 37 S.C.R. 1 at 10, that the jury, having found negligence under only one of the heads submitted to them, must be taken to have negatived all others, because here the jury s attention had been focused on the by-law. There should be a new trial.
APPEAL from a judgment of the Court of Appeal for British Columbia [1], affirming a judgment of Clyne J. entered on the findings of a jury. Appeal dismissed, Locke J. dissenting.
William Leonard Buxton, the plaintiff s husband, a logger at that time unemployed, rented a housekeeping room in the Lincoln Hotel in Vancouver, of which the defendant Carriss was lessee and manager. He paid a week s rent in advance on the morning of Saturday, June 5, 1954, and was assigned a room that had been vacant for about a week and had previously been occupied by one Knutson. The room was equipped with a two-burner gas stove working off a coin meter. Attached to the stove was a safety device installed in March 1954 in compliance with a municipal by-law. This device was intended to prevent the flow of gas to the burner if the pilot light on the stove was not burning.
When the plaintiff and her husband were taken to the room on the Saturday morning, Carriss showed them how to operate the stove. The plaintiff swore in her evidence that there was difficulty at that time in lighting the righthand burner, and that it "popped out". Mr. and Mrs. Buxton left the hotel and did not return until the middle of the night, at which time Mrs. Buxton turned on the stove, with difficulty, and left it burning for about 45 minutes. She spent the night at the hotel with her husband and left early the following morning to be with her children, who were staying with friends in Vancouver.
On the Sunday night Buxton returned to his room accompanied by one Dawson, and Dawson gave evidence at the trial as to the difficulty Buxton had in lighting the stove. He said that it would "flare up, just pop around and dance and go out". He also said that Buxton complained to persons in the hotel office about this difficulty. Knutson swore that during his occupancy of the room he had never used the right-hand burner.
On Tuesday morning, June 8, Carriss noticed a smell of gas in the corridor outside Buxton s room. He opened the room with the housekeeper s key and found Buxton lying dead on the bed, fully clothed. The room was filled with gas, the right-hand burner of the stove was turned on, but no gas was then coming from the stove. The stove was inspected that afternoon by the city police and the same difficulty was experienced in lighting the right-hand burner. The adjustable port which controlled the mixture of air and gas was found to be out of its proper position, and there was expert evidence to the effect that an incorrect mixture of air and gas would interfere with the combustibility, and further uncontradicted evidence that the condition of the port must have existed for a considerable time. The medical evidence was to the effect that Buxton died of asphyxia due to carbon monoxide poisoning. The plaintiff sued on her own behalf and on behalf of her three infant children under the Families Compensation Act, R.S.B.C. 1948, c. 116. The action was originally brought against Carriss and two other defendants but was discontinued against the other defendants at the trial. The jury awarded damages amounting in all to $39,865.
A. W. Johnson, for the defendant, appellant.
D. McK. Brown, and T. Griffiths, for the plaintiff, respondent.
RAND J.:—This is an appeal from a judgment [2] finding the appellant Carriss, as keeper of an inn, liable in damages for the death of the respondent s husband while a guest. Involved in the question of the degree of care chargeable against an innkeeper and the effect of a by-law of the City of Vancouver, was a matter of pleading on which much argument was made differentiating such a claim in contract from that in tort, and this should be dealt with first.
It should be recalled that the Judicature Act, for the purposes of determining the substantive rights of parties, abolished the technical rules of pleading at common law and under the various common law procedure statutes, and prescribed, among other things, that what must be alleged in a statement of claim are those matters of fact upon which liability is predicated. It may be that for special or subsidiary purposes a distinction is called for in the aspect of liability on which a plaintiff puts his claim; but to say that, on a statement of all the facts from which a contract appears and from which at the same time a common law duty arises, it would be fatal to omit such an allegation as, for example here, that the deceased was a guest "for reward" when that was one of the first matters proved, and in fact admitted, is to restore the evil which it was the primary object of the Judicature Act to banish. I take the claim to be that of the ordinary case of a person entering into the relation of a guest of an innkeeper at the usual charge and for the usual services.
The result of the exclusion, at the trial, of all consideration of a "contractual relation" between the parties was that no resort was permitted to be made to what is called a "warranty" of the fitness of the premises for the purposes for which they were taken. From this it was assumed that only the duty between an invitor and an invitee was available to the plaintiff, under the rule of Indermaur v. Dame[3], a case of an open shaft in a sugar refinery into which had fallen a gas-fitter representing the seller of a gas-regulator who was on the premises for the purpose of testing the device and whose employer was to be paid according to the economy effected in gas-consumption. Maclenan v. Segar[4] was distinguished as being an action against an innkeeper in contract.
This distinction takes us back to the early forms of action in which a claim was made against one who had "undertaken" to do some act affecting the person or property of another in the course of which the performance was alleged to have miscarried. The action for the generality of such claims was in assumpsit, a special form of case, which, in the course of time, became also the form for breach of a promise purely as well as breach in performance. In actions against persons engaged in common employment the form seems to have been limited to case as distinguished from assumpsit.
The legal relation of guest to innkeeper arose out of the historical conditions of England and the extent of liability is that imposed by the common law. Innkeepers, generally, are insurers of the goods of travellers who come to their inns; and they are responsible to some degree short of insurers for their care and safety. That early history is sketched in the introduction to Beale on Innkeepers and Hotels, 1906, and the development of the duty toward guests put up in a common room in which all slept on the floor to that in the accommodation of a modern hotel has brought with it aspects of liability which were not then encountered. It remains only to add that the cause of action against an innkeeper was for breach of duty arising from "the custom of the realm" which meant simply the general custom, i.e., the common law: the duty was the creation of that custom and law.
Another element which must be kept in mind is that the innkeeper, subject to certain exemptions, is bound to accept all travellers without distinction and that obligation becomes a material element in the aspect of contract. Strictly speaking, a contract is entered into by both of two persons freely and voluntarily, but an innkeeper has not that liberty of action, nor are the terms of the ordinary engagement agreed upon; once the relation is established, the liability arises by law. Since it is so prescribed, the action should, strictly speaking, be classified as in tort; but early in the 19th century Bretherton et al. v. Wood[5], a case of common carrier, recognized that the action could be laid in either tort or contract. The point of significance there was in the joinder of parties; in contract, all must have been made parties, in tort that was not necessary. But it was never suggested that the duty in the one case was different in scope from that in the other. Alternative claims can now be included in an action and these points of dispute of the past are, for purposes of substance, buried.
What is called a "warranty", certainly in ordinary usage, is appropriately so called only as an express or implied term or assurance in contract where a result or condition rather than a service is paid for, and when dealing with the basic duties imposed by law on a common employment, that word does no more than define the scope of liability which the law imposes. No doubt that scope can be modified by terms that give a contractual colour to the relation. Whether we should view the transaction as a contract incorporating the common duty as part of its terms is doubtful, if for no other reason than the cases of infants or others incapable of contracting, and those of furnishing gratuitous services. But this does not affect collateral agreements providing for, among other things, special times, places or facilities, which create duties preliminary to entering upon the undertaking. I can see no objection to treating modifying terms as themselves merged in the legal incidents. In contracts involving a duty of care, as, for example, in Francis v. Cockrell[6], the implied terms are to be deduced from the total circumstances of each situation. But the duty of an innkeeper toward his guest in a personal aspect, whatever its relation in scope to that of a common carrier to a passenger is, at least, not less than that of an invitor to an invitee and, for the purposes here, that is sufficient If we were to apply the rule of Maclenan v. Segar, supra, reasonable care exercised in relation to the premises furnished to guests, that is, exercised by every person at any time concerned in their construction, maintenance or operation but excluding latent defects not discoverable by any reasonable means or caused by unauthorized action of third persons, then liability would be indisputable. The condition of the port admitting air to the gas flow just before it entered the burner was conceded to be most dangerous; the aperture was so far opened that the quantity of air admitted was sufficient to destroy the combustibility of the mixture; the gas, in effect, was drowned out, and the flame, at best a partial combustion at times obtainable only by matches, was so weak and separated from the burner as to be extinguishable by a wave of the hand. It tended to go out when the gas supply was running low, a supply controlled by a meter operated by the deposit of 25c pieces. That the defective condition was brought about by an intermeddler is excluded.
Nor is there any question of latency or technical complication. The port consists simply of an enlarged rounded metal attachment, with a disc face, screwed into the short pipe leading to the burner a few inches from the manual valve admitting the gas. The disc face has small arc-shaped slots through which air passes into the pipe and the apertures are opened or closed by means of a small circular plate movable through the arc; and the plate is held in position by a set-screw.
The room had been occupied by a previous guest for about seven months ending May 31, 1954. As a witness for the defendant, he stated that at no time during his occupancy had he used the right-hand, the defective, burner. In March 1954 a safety device had been installed which stopped the flow of gas to the stove unless an attached pilot light was burning and part of the operation of which was that the pilot light would keep the burners alight. But even if working perfectly, the pilot light could not function as intended unless the gas-air mixture was in the appropriate proportions.
In this background also was the by-law which required the gas stove to be "maintained in safe working condition". Its enactment resulted from a series of deaths from monoxide in the city which in 1953 reached 86 and in 1954, 67. With such a record before them, all users of gas and particularly those in charge of public sleeping quarters were made conscious of the deadliness of free gas. Carriss knew this, but it is a commentary on his sensitiveness to it that the introduction of the devices required by the by-law was made by him only just before the expiration of the period allowed, when he "beat the deadline" as he expressed it.
The by-law does not, as I interpret it, go beyond the requirement that reasonable care—in this case of highest degree—be exercised by the proprietor and all persons under his direction in all respects of maintenance and operation, excluding independent contractors in relation to work that requires high technical skill and excluding defects in appliances or devices which are not discoverable by ordinary means. As is evident, the adjustment here was not one for a highly skilled technician; any interested owner making a modicum of examination of the air-port and seeing its function could adjust it himself. Its operation is immediately reflected in the flame produced. All it needs is some attention and at the most a few words from a gas-fitter to see its purpose and the means of bringing about what is required. To one concerned to maintain its safety, though ignorant of its mechanism, the improper adjustment as "something wrong" would appear in a testing by the resulting combustion: the flame would "pop out" and it would have to be lighted and relighted before the "popping out" ceased for any length of time. This, to any proprietor, would be a demonstration of a condition of danger. To be informed on this adjustment by a gas-fitter would be part of the instruction which every such proprietor, or some one for him, should have sought and obtained unless a periodic inspection was provided for which was not the case here.
On Saturday morning when the room was engaged, such a condition was, by the evidence of Mrs. Buxton, disclosed: the flame would "pop out"; the same thing was said by her to have happened early Sunday morning about 2.15 o clock; the same by Dawson on Sunday evening; and the same admittedly on Tuesday afternoon when the inspection was made by the police and the gas inspector. On Saturday morning the deceased is said to have remarked to Carriss that something appeared wrong, evidence which the latter denies; on Sunday night the deceased, according to Dawson, complained to two persons apparently in charge of the office; but Carriss, admitting that a man and wife, employed as night housekeepers, would properly have been in the office, denied having been notified of any complaint.
Dawson spent most of Sunday with the deceased. He had, over a period of two years, been a visitor of a guest of the hotel and had frequently seen a man and wife, the housekeepers, in the office. On Sunday evening, in the course of leaving the house with the deceased, the latter stepped to the office window and made the complaint. Dawson stood aside. Although he heard the conversation, he did not actually see the persons within and his belief that, from their voices, they were the former housekeepers was erroneous. The latter had in fact left the hotel two years before and had been succeeded by another man and wife. Counsel declined to cross-examine Dawson and reserved his objection that the evidence was inadmissible because Dawson had not seen the two persons, and that it had not been shown that they were employed by Carriss: on the truth or falsity of the alleged statement by the deceased no questions were ventured. That the statements if made were to persons apparently in charge is not now challenged. The defence to the jury, based on the general circumstances and the fact that the persons whose voices they were thought by Dawson to be were not in fact theirs but others, was that the testimony of both the respondent and Dawson was fabricated. The caretakers were not called, although Carriss, urging his ignorance of the complaint, had looked for their names in the telephone directory but gave it up on account of there being so many "Johnsons". But he made no enquiry of the plasterers union to which Johnson belonged: or the taxi-drivers union to which Mrs. Johnson belonged: nor did he advertise for information of their address. Moreover the trial judge, on admitting the evidence—under a particular of negligence alleging that the defendant failed to take "adequate or any precautions to protect the users thereof from death or injury from asphyxia from cooking gas"—assured counsel that he would be given opportunity, if necessary, to furnish evidence in reply. This took place on Thursday: on Friday, after an argument of law, the Court adjourned until Monday for the addresses and the charge; no request was made for further time nor is it stated that any effort was made to produce the Johnsons. Neither the respondent nor Dawson had been present at the examination of the stove on Tuesday afternoon, June 8, and their description of how the gas in the right burner behaved is almost in the same words as that of detective Mackay, that is, that matches were required to set it aflame, that the flame would flicker and then "pop out".
The trial judge left the question of liability on the footing of two duties, one as invitor and the other, that created by the by-law. The former was stated as follows:
At common law the duty which the invitor, that is to say, Carriss, owed to the invitee is this: Buxton, using reasonable care for his own safety, was entitled to expect that Carriss would use reasonable care to prevent damage from unusual danger which he, Carriss, knew or ought to have known about. Now let me repeat that again in different words. Carriss owed Buxton a duty to use reasonable care to make the room safe from any unusual danger, which Carriss knew, or ought to have known about. Now that is the duty which Carriss owed to Buxton at common law.
Then he dealt with the by-law:
He also owed him another duty under the by-law. The by-law, which was passed by the City of Vancouver, imposed on Carriss a further duty, and you will see this clause in exhibit 16, By-law 3406, on page 2 of that by-law, and I am reading from clause 9:
The owner of a building shall maintain all gas appliances installed therein and all safety devices attached to such appliances in safe working condition.
At the conclusion of the charge, Mr. Johnson, for Carriss, drew attention to the fact that no reference to any difference in the degree of care required by these duties had been made, but the answer of the trial judge was that he thought
the clearest way in which I can detail that to you, gentlemen, is that you are entitled to take a breach of the by-law—if you find that such a breach did occur, you are entitled to take that into consideration as a factor of negligence.
and with this the matter ended.
Previously in the charge the trial judge had pointed out the defence of Carriss that he knew nothing of the defective adjustment, and on this he remarked:
…and you must ask yourselves, did he know about it or should he have known about it. He says he never received any complaint about the burner at any time. He says that Knutson occupied the room, and that Knutson said he never made any complaint and there was no reason to complain about the efficiency of the gas stove. Knutson said, of course, that he never used the right burner, that he always used the left. You must ask yourselves, was the right-hand burner in a defective condition when Buxton and his wife rented the room, or did it become defective by reason of Buxton or his wife tampering with it. The jury acquitted Buxton of coming to his death by his own act and of contributory negligence. They found Carriss guilty of negligence in "not conforming with by-laws of the City of Vancouver".
From these excerpts it is quite apparent that the jury was not given to understand that there was an absolute duty under the by-law to maintain in all events a proper adjustment in the gas stove. If that had been so, apart from the question of Buxton s own act, deliberate or negligent, now excluded, the issue of negligence would have been superseded; in the absolute sense, there was unquestionably a default, and there would have been left only the issue of suicide or contributory negligence; but the by-law was to be only evidence of negligence. In the light of those last words to the jury the finding is that of negligence, and the evidence of it is overwhelming.
Carriss had taken over the hotel in 1947, and at that time the stove was in the room. From then until June 8, 1954, so far as the evidence shows, he had given not the slightest examination of the working of the stove or of any adjustment connected with it. Apparently there had been no complaints and, as he thought, no occasion to examine it. Not until March 1954, when the safety device was installed, was any kind of work related to it. That device had nothing directly to do with the air adjustment. The evidence of the gas-fitter who installed it was, at the highest, that the defective burner had then been lighted by the pilot flame. That the screw had not been touched at that time is indicated by its condition on June 8 when it was loosened by using a screwdriver only with difficulty in a surrounding of hardened grease which broke off in flakes. The evidence of the previous inmate was to the effect that when the gas was at its highest pressure the left burner could be lighted by the pilot flame but as the pressure got low even that was uncertain. It should be mentioned also that in March the gasfitter had been called back for a faulty installation of the device or adjustment in another room. In the presence of all these facts, the failure of Carriss for several years to make any examination of such a dangerous agency and the continued existence, over an undetermined period, of the condition found, one which does not lend itself to explanation or excuse, and for which none was offered, not only justified but required a finding that, within the direction given, he should have known of a danger that was patent to any reasonable inspection, and, through his negligence, was responsible for the consequences. For the purposes of this case, that sufficiently states the standard of duty of, or the warranty by, an innkeeper toward his guest. Whether the duty goes beyond that is a question upon which it is unnecessary to enter; it is at least not less than that.
The appeal extended also to the amount of damages awarded: but I am quite unable to say that the Court of Appeal was wrong in holding them not to be unreasonably high.
I would dismiss the appeal with costs.
LOCKE J. (dissenting):—I agree with Mr. Justice Davey, who dissented from the judgment of the majority of the Court of Appeal[7], that there should be a new trial of this action. In these circumstances, I refrain from discussing the evidence given at the trial except to the extent that it is necessary to explain my reasons for reaching this conclusion.
It is necessary in view of what occurred at the trial to examine the pleadings with some care. The action was brought by the widow of the deceased William Buxton on behalf of herself and the infant children of the marriage, under the provisions of the Families Compensation Act, R.S.B.C. 1948, c. 116. Under s. 5 of that statute such actions must be commenced within twelve calendar months after the death of the deceased person, a circumstance that had a bearing upon what took place at the conclusion of the plaintiff s case.
The action was started within one year of the death and by the endorsement on the writ the plaintiff claimed
damages caused by the negligence of the Defendants, their servants and agents whereby the said William Buxton, deceased, met his death on the 8th day of June, A.D. 1954. The statement of claim alleged that the defendant Carriss was "the occupier and manager of the hotel premises known as the Lincoln Hotel , at 106 West Hastings Street, in the City of Vancouver", and further that:
On or about the 8th day of June, A.D. 1954, one, William Leonard Buxton, the lawful husband of the Plaintiff herein, was the occupant and the tenant of Room 214 at the aforesaid premises
when he met his death in the said room, due to asphyxia.
These allegations were followed by paragraphs in which the plaintiff said that she pleaded By-law 2483 and various amendments to that by-law and gave lengthy particulars of the negligence of the defendant upon which the claim was based against him. While the statement of claim did not say so, the by-law referred to was a by-law of the City of Vancouver, which was put in evidence at the trial.
The case was tried before Clyne J. and a common jury. The City by-laws referred to in the statement of claim were put in evidence, though their admission was objected to by counsel for the defence. In my opinion, they were properly admitted for the limited purpose hereinafter referred to.
Before the conclusion of the plaintiff s case and during a rather lengthy discussion as to the admissibility of the by-laws, the learned judge observed that the action was founded in tort and not in contract upon an implied warranty, counsel for the plaintiff taking the attitude that Francis v. Cockrell[8] did not apply. He had understood from counsel for the plaintiff that the plaintiff s case was one as to which the principle in Indermaur v. Dames [9] applied.
Later in the proceedings, however, and before the case went to the jury, counsel asked leave to amend the statement of claim by adding a paragraph reading:
Alternatively, the plaintiff claims damages for the breach of the implied warranty of the safety of the hotel premises for the use thereof by the deceased as the occupant or tenant thereof.
and a further paragraph reading:
Alternatively, the plaintiff says that at all material times the said deceased was the lawful occupant for hire of the said room No. 214 in the said hotel premises and that the said defendant Carriss was in breach of the implied warranty that the said premises and the gas appliances therein, and all modifications thereto, were in a safe working condition for use by the said deceased for the purpose for which they were installed. In Francis v. Cockrell, supra, Kelly C.B. in the Exchequer Chamber said in part (p. 508):
First, there is the principle which I hold to be well established by all the authorities, that one who lets for hire, or engages for the supply of any article or thing, whether it be a carriage to be ridden in, or a bridge to be passed over, or a stand from which to view a steeplechase, or a place to be sat in by anybody who is to witness a spectacle, for a pecuniary consideration, does warrant, and does impliedly contract, that the article or thing is reasonably fit for the purpose to which it is to be applied; but, secondly, he does not contract against any unseen and unknown defect which cannot be discovered, or which may be said to be undiscoverable by any ordinary or reasonable means of inquiry and examination.
Montague Smith J. said (p. 513):
…the proper mode of stating it is, the defendant promised that due care and skill had been used in the construction of the building; or the obligation may be put in the other form, that the building was reasonably fit for the use for which it was let, so far as the exercise of reasonable care and skill could make it so.
In Maclenan v. Segar[10], where the action was against an innkeeper by a guest of the hotel, McCardie J. followed Francis v. Cockrell and distinguished Indermaur v. Dames. The headnote accurately summarizes the decision and reads:
By reason of the contractual relationship existing between an innkeeper and a guest in the inn there is an implied warranty by the innkeeper that the inn premises are, for the purpose of personal use by the guest, as safe as reasonable care and skill on the part of any one can make them, but the innkeeper is not responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair, or maintenance of the premises.
Any difficulty in dealing with the application to amend arose from the fact that the limitation period of one year had long since expired. During the discussion the learned judge said in part:
You have to plead a contract and if liability is contractual there must be a contract before the Court which the Court can deal with. If the liability is in negligence then, of course, it is a different cause of action.
and expressed the view that the proposed amendments set up a new cause of action. In the result, the application to amend was refused. The learned judge pointed out that in opening the case to the jury counsel for the plaintiff had stated that the claim was in negligence and the relationship one to which the principle in Indermaur v. Dames, supra, applied, and that he proposed to put the matter to the jury—on that footing. Counsel for the plaintiff said that he was content with this.
In the charge to the jury the learned trial judge said in part:
At common law the duty which the invitor, that is to say Carriss, owed to the invitee is this: Buxton, using reasonable care for his own safety, was entitled to expect that Carriss would use reasonable care to prevent damage from unusual danger which he, Carriss, knew or ought to have known about.
This clearly was based upon the principle stated by Willes J. in Indermaur v. Dames at p. 287.
The charge then continued:
He also owed him another duty under the by-law. The by-law, which was passed by the City of Vancouver, imposed on Carriss a further duty, and you will see this clause in exhibit 16, By-law 3406, on page 2 of that by-law, and I am reading from clause 9:
The owner of a building shall maintain all gas appliances installed therein and any safety devices attached to such appliances in safe working condition.
The by-law applies not only to the owner, but it applies to the occupier; in other words, the by-law applies to Carriss.
Now Carriss was obliged by law to maintain all gas appliances in the room, including both the stove and the safety device, in safe working condition.
Now those are the two duties which Carriss owed to Buxton. In order to succeed in this case the plaintiff must prove that the defendant failed in one or both of those duties, and that the failure in such duty caused the death of her husband. If his death was caused by failure of duty by Carriss in this way, under the Families Compensation Act the widow and children are entitled to damages.
After reviewing the evidence at some length, the learned judge continued:
But on these facts, gentlemen, and on the law as I have given it to you, it is for you to say whether the plaintiff has proved her case, that is to say, that her husband met his death by reason of the failure on the part of Carriss to perform his duty to maintain those premises in a safe condition against any danger which he knew, or ought to have known, as whether, having a regard to the by-law, the failure on his part to keep the appliance in a safe working condition resulted in Buxton s death.
(The italics are mine.)
Of the five questions submitted to the jury, only the first two need be considered. These read:
1. Was the defendant, Carriss, guilty of negligence which caused or contributed to the death of Buxton?
2. If so, what was such negligence? The form of these questions had been agreed upon by counsel for the parties. Before the jury went out, the learned trial judge asked if there were any objections to his charge. Counsel for the defendant said that he was not sure whether the jury had been instructed as to whether
there is any difference between the obligation under the by-law and the common law obligation which your Lordship has pointed to.
To this, Clyne J. replied:
Well no, I think the clearest way in which I can detail that to you, gentlemen, is that you are entitled to take a breach of the by-law—if you find that such a breach did occur, you are entitled to take that into consideration as a factor of negligence. Now I think that is the most general way in which I can put it.
Counsel for the plaintiff said nothing as to this aspect of the matter.
The answer made